WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC ET AL.
No. M2012-02394-WC-R3-WC
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
Filed August 20, 2013
Mаy 1, 2013 Session Heard at Knoxville; Direct Appeal from the Circuit Court for Smith County; No. 2010CV36 John D. Wootten, Jr., Judge
Tenn. Sup. Ct. R. 51, § 2; Judgment of the Trial Court Reversed in Part; Affirmed and Modified in Part; Case Remanded to the Circuit Court for Smith County
Daniel C. Todd, Nashville, Tennessee, for the appellant, Bridgestone Firestone North American Tire, LLC.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Alexander S. Reiger, Assistant Attorney General, for the appellant, State of Tennessee.
William J. Butler and E. Guy Holliman, Lafayette, Tennessee; and Debbie C. Holliman, Carthage, Tennessee, for the appellee, William H. Mansell.
OPINION
I. Facts and Procedural History1
In June of 2008, William Mansell (the “Employee”) suffered an injury to his right shoulder while working for Bridgestone Firestone North American Tire, LLC (the “Employer”). Dr. Sean Kaminsky, an orthopedic surgeon, treated the Employee and, after evaluating his condition, assigned an impairment rating of 3% to the body as a whole. Dr. Robert Landsberg, also an orthopedic surgeon, performed an independent medical evaluation and assigned a 10% impairment rating. When the Benefit Review Conference at the Department of Labor and Workforce Development (“DOL”) ended in an impasse, the Employee filed suit. Prior to trial, the Employer requested the appointment of an independent medical examiner pursuant to the MIR process set out in
When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the [DOL’s] registry. . . . The written opinion as to the permanent impairment rаting given by the independent medical examiner pursuant to this subdivision (d)(5) shall be presumed to be the accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary.
The trial court granted the motion by the Employee, holding that the DOL had “relinquished jurisdiction” when the Benefit Review Conference reached an impasse, and that
At the conclusion of the presentation of evidence, the trial court accredited the testimony of the Employee and his wife, Regina, found that the impairment ratings of both Dr. Kaminsky and Dr. Landsberg had been assigned pursuant to the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”), and awarded benefits to the Employee, including future medical expenses and attorney’s fees. The trial court adopted the 10% impairment rating assigned by Dr. Landsberg, finding that it “more accurately follow[ed] the mandates of the AMA Guides, 6th Edition,” and, therefore, was entitled to more weight than Dr. Kaminsky’s impairment rating of 3%. Applying the statutory one-and-one-half times multiplier, see
This Court grantеd review of the appeal by the Employer and, in a memorandum opinion, vacated the judgment of the trial court. Mansell, 2011 WL 3758562, at *5. Although the Attorney General filed a brief as amicus curiae in the initial appeal, we concluded that the issue of the constitutionality of the MIR process contained in
On remand, the Employee, without waiving any constitutional challenges to the MIR process, agreed to submit to an independent medical examination by Dr. H. James Weisman, an orthopedic surgeon listed on the DOL’s registry. Dr. Weisman completed his MIR report pursuant to
A trial court’s findings of fact in a workers’ compensation case are reviewed de novo accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise.
The interpretation and application of Tennessee’s Workers’ Compensation Law are questions of law that are reviewed de novo with no presumption of correctness. Nichols v. Jack Cooper Transp. Co., 318 S.W.3d 354, 359 (Tenn. 2010). Issues of constitutional interpretation are also questions of law, which the Court reviews de novo without any presumption of correctness given to the legal conclusions of the courts below. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). The Court must uphold the constitutionality of a statute wherever possible, beginning with the presumption that the statute is constitutional. State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007).
III. Analysis
The Employer contends that the trial court erred by finding
A. Statutory Interpretation
A preliminary issue is whether the General Assembly intended for
Our consideration of a question of statutory construction is without any deference to the trial court. See In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). When addressing the interpretation of a statute, well-defined precepts apply. Colonial Pipeline, 263 S.W.3d at 836. “Our primary objective . . . is to carry out the intent of the legislature without unduly broadening or restricting the statute.” Nichols, 318 S.W.3d at 359-60. When a statute is cleаr, we apply the plain meaning without complicating the task, and simply enforce the written language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 101-02 (Tenn. 2006) (quoting Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). When a statute is ambiguous, however, we may refer to the broader statutory scheme, the history of the legislation, or other sources to discern its meaning. Colonial Pipeline, 263 S.W.3d at 836. Further, courts must presume that our General Assembly was aware of its prior enactments and knew the state of the law at the time the legislation was passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
The MIR program was created in 2005 to “establish[] a resource to resolve disputes regarding the degree of permanent medical impairment ratings for injuries or occupational diseases to which the [Workers’ Compensation Law] is applicable.” Tenn. Comp. R. & Regs. 0800-02-20-.02(1) (2006).
In the memorandum opinion issued pursuant to the initial appeal, we recognized that a dispute as to the degree of medical impairment did exist because “two (2) different physicians have issued differing permanent medical impairment ratings in compliance with the [Workers’ Compensation Law] and the parties disagree as to those permanent impairment
By the enactment of the Workers’ Compensation Reform Act of 2004, the General Assembly required employees and employers to submit to a Benefit Review Conference in the DOL before filing suit. See
One year after the Workers’ Compensation Reform Act of 2004, the General Assembly passed the legislation establishing the MIR process. Act of June 15, 2004, ch. 962, § 24, 2004 Tenn. Pub. Acts 2346, 2361 (codified at
B. Constitutionality of Section 50-6-204(d)(5) and the MIR Process
The Employee contends that
1. Separation of Powers
The Tennessee Constitution includes two explicit provisions establishing the separation of powers among the three branches of government. Article II, section 1 provides, “The powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.”
Based upon these principles, but taking into account considerations of comity among the three branches of government, this Court has exercised measured restraint by repeatedly holding that “[a] legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch of government.” Lynch, 205 S.W.3d at 393 (alteration in original) (quoting Underwood, 529 S.W.2d at 47). “It is only by remembering the limits of the power confided to the judicial department of the government, and respecting the independence of the other departments, that the judiciary can maintain its own independence in the proper sense of the term[.]” State ex rel. Robinson v. Lindsay, 53 S.W. 950, 952 (Tenn. 1899).
In State v. Mallard, 40 S.W.3d at 475, this Court considered the propriety of legislation that touched upon the constitutional powers reserved exclusively for the judicial branch. The General Assembly enacted
[T]he legislature can have no constitutional authority to enact rules, either of evidence or otherwise, that strike at the very heart of a court’s exercise of judicial power. Among these inherent judicial powers are the powers to hear facts, to decide the issues of fact made by the pleadings, and to decide the questions of law involved. As an essential corollary to these principles, any determination of what evidence is relevant, either logically or legally, to a fact at issue in litigation is a power that is entrusted solely to the care and exercise of the judiciary. Indeed, a “court’s constitutional function to independently decide controversies is impairеd if it must depend on, or is limited by, another branch of government in determining and evaluating the facts of the controversies it must adjudicate.” Consequently, any legislative enactment that purports to remove the discretion of a trial judge in making determinations of logical or legal relevancy impairs the independent operation of the judicial branch of government, and no such measure can be permitted to stand.
Id. at 483 (citations omitted) (quoting Opinion of the Justices, 688 A.2d 1006, 1016 (N.H. 1997)). Ultimately, this Court, respectful of the presumptive constitutionality of all legislative acts, chose to interpret the statute as merely supplemental, holding that its terms applied so long as the “proffered evidence otherwise me[t] all the requirements for admissibility under the Rules of Evidence.” Id. at 484.4
Shortly after the decision in Mallard, this Court considered a similar challenge in the workers’ compensation context. In Martin v. Lear Corp., 90 S.W.3d 626 (Tenn. 2002), an employee sought to introduce the testimony of a physician who had examined him at the request and expense of his employer, citing as support
Our deference to the General Assembly in the workers’ compensation context dates back to the enactment of the Workmen’s Compensation Act in 1919. From the decision in Scott v. Nashville Bridge Co., 223 S.W. 844, 848, 854 (Tenn. 1920), in which this Court upheld the constitutionality of the vast majority of the original act and reaffirmed the legislature’s authority to abolish common law defenses and establish compensation to injured workers,5 to our ruling in Lynch v. City of Jellico, 205 S.W.3d at 393, in which we held that the “benefit review process [described in the Workers’ Compensation Reform Act of 2004] does not frustrate the adjudicative function of the judicial branch,” this Court has consistently rejected challenges to the workers’ compensation scheme based upon the separation of powers provisions of the Tennessee Constitution.
In this instance, the Employee makes arguments similar to those advanced in Martin, contending that the statute creating the MIR process is unconstitutional because it conflicts with Tennessee Rules of Evidence 702 and 706, which govern the appointment of experts and the admissibility of their testimony. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule 706 describes the general circumstances under which a trial court may qualify and appoint an expert witness of its own selection. See Tenn. R. Evid. 706. The MIR process, in contrast, requires the Commissioner of the DOL, rather than the trial court, to establish the quаlifications for MIR physicians whose impairment ratings are afforded the statutory presumption of accuracy.
(a) Possess a license to practice medicine or osteopathy in Tennessee which is current, active, and unrestricted;
(b) Be board-certified in his/her medical specialty by a board recognized by the American Board of Medical Specialties, the American Osteopathic Association or another organization acceptable to the Commissioner;
(c) Have successfully completed a training course, approved by the Commissioner, dedicated to the proper application of the applicable edition of the American Medical Association Guides to the Evaluation of Permanent Impairment . . . in impairment evaluations and furnish satisfactory evidence thereof; and
(d) Furnish satisfactory proof of carrying the minimum medical malpractice insurance coverage.
Tenn. Comp. R. & Regs. 0800-02-20-.04(1) (2006). MIR physicians are also subject to peer review to ensure that proper procedures are followed, Tenn. Comp. R. & Regs. 0800-02-20-.12(1) (2006), and an MIR physician’s failure to properly apply the AMA Guides in determining an impairment rating may result in permanent or temporary removal from the MIR registry, Tenn. Comp. R. & Regs. 0800-02-20-.13(1)(c) (2006). By comparison, trial courts determining whether an expert is qualified to testify pursuant to Rule 702 may consider
(1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). To the extent the McDaniel factors are not already implicated by the DOL regulations, a trial court is always free to consider those factors when evaluating an MIR report to determine if the presumption
A second limitation imposed by the MIR statutes is that a trial court may not appoint its own expert witnesses under Tennessee Rule of Evidence 706 to assist in the establishment of the degree of medical impairment. See
In summary, because the MIR statutes are specifically tailored to certain, limited circumstances within the overall workers’ compensation scheme, we cannot conclude that the MIR process “strike[s] at the heart of the court’s exercise of judicial power.” Martin, 90 S.W.3d at 631 (citing Mallard, 40 S.W.3d at 483). As held in Martin, “the statute at issue . . . does not impermissibly conflict with [Tennessee Rules of Evidence 702 or 706] because it merely limits the application of [the Rules] in certain circumstances.” Id. Moreover, insofar as the Employee’s arguments relate to the weight to be given an MIR physician’s
2. Due Process
The Employee also challenges the constitutionality of
a. Procedural Due Process
“The most basic principle underpinning procedural due process is that individuals be given an opportunity to have their legal claims heard at a meaningful time and in a meaningful manner.” Lynch, 205 S.W.3d at 391; see also Heyne, 380 S.W.3d at 732 (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976))). In determining whether this requirement has been met, we must consider three factors established by the United States Supreme Court:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional оr substitute procedural requirement would entail.
Heyne, 380 S.W.3d at 732 (quoting Mathews, 424 U.S. at 335). Within this framework, we are mindful that “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
In this instance, we must determine whether the MIR process established in
As stated, we have previously upheld the constitutionality of our workers’ compensation system against similar attacks. See, e.g., Lynch, 205 S.W.3d at 392 (holding that the mandatory benefit review conference requirement does not deprive injured workers of their right to be heard because they may file suit and have their rights judicially determined upon exhausting the benefit review process). The Employee contends, however, that once a litigant has completed the Benefit Review Conference and files suit,
Initially, the Employee has conceded, as he must, that the presumption created in
b. Substantive Due Process
In contrast to procedural due process, substantive due process bars oppressive government action regardless of the fairness of the procedures used to implement the action. Lynch, 205 S.W.3d at 391-92. Substantive due process claims are divided into two categories: (1) deprivations of a fundamental constitutional guarantee, and (2) government actions that are “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 392 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992)). “Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful ‘respect for the teachings of history [and] solid recognition of the basic values that underlie our society.’” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503 (1977) (quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring)). While workers’ compensation benefits, as property rights, are protected by article I, section 8 of the Tennessee Constitution, they are not fundamental rights “implicit in the concept of ordered liberty.” See Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996); see also Lynch, 205 S.W.3d at 392 (“While it is certainly important to ensure that workers obtain redress for industrial accidents, the workers’ compensation scheme does not stand on the same footing as those fundamental rights identified by state and federal courts [as] ‘implicit in the concept of ordered liberty’ so as to raise substantive due process concerns.”). In consequence, our analysis addresses whether the statutory presumption created by
By the adoption of the MIR process, the General Assembly sought to establish “a resource to resolve disputes regarding the degree of permanent medical impairment ratings
We have consistently recognized the prerogative of the legislature to establish the policies and procedures necessary to administer workers’ compensation claims. Martin, 90 S.W.3d at 631-32. Like the establishment of the Benefit Review Conference in 2004, the creation of the MIR process in 2005, designed to minimize costs and expedite the resolution of claims by injured workers, does not qualify as an “arbitrary, or conscience shocking” exercise of the legislature’s authority.” Lynch, 205 S.W.3d at 392 (citing Collins, 503 U.S. at 128). Instead, the legislature “has merely provided an alternative procedure in a limited and specific context—workers’ compensation cases” in which the employee and the employer disagree as to the appropriate medical impairment rating. Martin, 90 S.W.3d at 632. In consequence, the MIR program established in
C. Application of Section 50-6-204(d)(5)
Having determined that the statutory presumption created by
This Court has described “clear and convincing evidence” as that “in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). In the specific context of the statute at issue, the clear and convincing evidence standard has been interpreted to mean that “if no evidence has been admitted which raises a ‘serious and substantial doubt’ about the evaluation’s correctness, the MIR evaluation is the accurate impairment rating.” Beeler, 2009 WL 396121, at *4. Another Special Workers’ Compensation Appeals Panel has also observed that “[a] straightforward interpretation of [the clear and convincing evidence] standard favors, or even requires, the presentation of affirmative evidence that an MIR physician had used an incorrect method or an inappropriate interpretation of the AMA Guides to overcome the statutory presumption.” Tuten, 2010 WL 3363609, at *4 (emphasis added).
Since the Panel’s decision in Tuten, other Panels have retreated from such a narrow interpretation of the clear and convincing evidence standard. For example, a Panel has “observed that the presumption found in section 50-6-204(d)(5) may be rebutted by affirmative evidence that an MIR physician ‘used an incorrect method or an inappropriate interpretation’ of the AMA Guides.” Smith, 2013 WL 683192, at *3 (emphasis added) (quoting Tuten, 2010 WL 3363609, at *4). Another held that “[p]roof that an MIR рhysician used an incorrect method or an inappropriate interpretation of the AMA Guides can be used to overcome the statutory presumption.” Bean, 2011 WL 686449, at *7 (emphasis added) (citing Tuten, 2010 WL 3363609, at *4). Yet another Panel cited Tuten for its statement of “what may be required to rebut[] the presumption found in [section] 50-6-204(d)(5).” Brooks, 2011 WL 684600, at *3 (emphasis added). In any event, “[w]hen deciding whether or not an employee has rebutted the statutory presumption of correctness enjoyed by an MIR
In this instance, the Employee did not present any proof that specifically rebutted the 7% rating by Dr. Weisman. On remand, the Employee submitted to an MIR evaluation and the content of the MIR report was stipulated as evidence. Although the Employee also submitted the deposition of Mr. Blaisdell, the Program Coordinator of the MIR program in the DOL, his testimony did not address the issue of medical impairment. In fact, at the hearing on remand, counsel for the Employee relied solely upon the constitutional argument, conceding that there was no clear and convincing evidence to overcome the statutory presumption. Although counsel retracted the concession during oral argument before this Court, the recоrd confirms that the Employee made no attempt to produce testimony clearly and convincingly rebutting the contents of the MIR report.
The Employee did, as indicated, offer the deposition testimony of Mr. Blaisdell, which related primarily to the general administration of the MIR process, including the relevant chain of command in the DOL, the procedures for qualifying physicians to be listed on the MIR registry, and the standards applied on peer review of an MIR report. While only one-and-one-half pages of his seventy-six-page deposition transcript relate to the MIR report submitted by Dr. Weisman, Mr. Blaisdell did testify that he had discovered that Dr. Weisman had initially submitted an outdated reporting form, that he had notified Dr. Weisman of the error, and that he had asked him to re-contact the Employee and use the current form in order to accurately complete his final report. According to Mr. Blaisdell, Dr. Weisman telephoned the Employee with additional questions, completed the current form, and submitted a proper MIR report. When asked how an employee could rebut the presumption of accuracy of an MIR report, Mr. Blaisdell responded that the clear and convincing evidence standard was defined in case law, and that it would be left to the discretion of the trial court to determine whether that standard had been met.
Three decisions by Special Workers’ Compensation Appeals Panels illustrate the differences between the evidence submitted in this instance and what has previously qualified as evidence so clear and convincing as to rebut the statutory presumption afforded an MIR report. In Brooks v. Correctional Medical Services, the trial court found that the “observations of Employee, Employee’s testimony, the medical proof, and the testimony of the physician who had treated [E]mployee for a number of years” had overcome the statutory presumption. 2011 WL 684600, at *5. The Panel affirmed, holding that “the focus is on the evidence offered to rebut [the MIR] physician’s rating,” which included, “[p]erhaps most importantly,” testimony by the treating physician as to errors in the evaluation conducted by the MIR physician. Id. In Amado v. Bridgestone Firestone Americas Tire Operations, LLC, the trial court found that the statutory presumption had been overcome by clear and
In this instance, the deposition testimony of Mr. Blaisdell does not overcome the presumption of accuracy of Dr. Weisman’s 7% impairment rating. While the trial court properly reviewed the entire record in reaching its conclusion, nothing called into question the accuracy of the MIR report. Counsel for the Employee conceded as much during the hearing on remand. Absent any other evidence to question the accuracy of the MIR report, the fact that Dr. Landsberg—whose deposition was taken two years prior to Dr. Weisman’s evaluation of the Employee—assigned a different impairment rating under the AMA Guides is not sufficient to overcome the statutory presumption. See Smith, 2013 WL 683192, at *4; Beeler, 2009 WL 396121, at *4. Further, the trial court adopted the higher impairment rating of 10% by Dr. Landsberg based in large measure on differences in the respective medical qualifications of Dr. Landsberg and Dr. Weisman. Although differences in medical qualifications, standing alone, are typically insufficient to overcome the statutory presumption, see Claiborne, 2009 WL 4017167, at *5, the trial court erroneously accredited Dr. Landsberg as a member of a “disability rating physicians board academy” and found this “unique qualification” sufficient to overcome the presumption. To the contrary, the record demonstrates that Dr. Weisman, not Dr. Landsberg, was a member of the American Board of Independent Medical Examiners.
Under these circumstances, the evidence preponderates against the trial court’s factual findings as to the medical qualifications of the physicians, and the presumption of accuracy has not been otherwise overcome by clear and convincing evidence. While we acknowledge that an employee may be able to overcome the presumption even without “affirmative evidence that an MIR physician had used an incorrect methоd or an inappropriate interpretation of the AMA Guides,” Tuten, 2010 WL 3363609, at *4, in this instance, the Employee has been unable to produce evidence of rebuttal.9 That Dr. Weisman had initially
IV. Conclusion
GARY R. WADE, CHIEF JUSTICE
Notes
Williams v. United Parcel Serv., 328 S.W.3d 497, 502 (Tenn. Workers’ Comp. Panel 2010) (footnote omitted) (quotingThe statutes and rules governing MIR reports reflect that the General Assembly’s purpose was to provide an efficient method for presenting neutral, objective opinions regarding an employee’s impairment to aid trial courts when the parties disagree regarding the extent of the impairment. If the requirements in [
Tennessee Code Annotated section 50-6-204(d)(5) ] and the regulations promulgated thereto are met, the report becomes a self-authenticating official document certified by the [DOL]. The document itself gives rise to a rebuttable presumption that the impairment rating in the document is “the accurate impairment rating.”